03/17/2008 05:41 pm ET Updated May 25, 2011

The Florida and Michigan Do-Overs and the Virtues of the "Half-Nelson"

The more I think about how to handle the Democratic delegates from Michigan and Florida, the more I am convinced that a revote, especially in Florida, is the wrong way to go and that some kind of political compromise, such as seating the Florida delegates but giving them half a vote each, or splitting the delegates 50/50 between Sens. Clinton and Obama, is the best way to go. In this post, I first lay out my reasoning and then talk about how to get there.

1. The Equities for and Against a Revote. I begin by taking off the table the possibility that the delegates from Michigan and Florida should be seated based on the results of elections that violated the DNC rules. As I've said, "Yes, we had a contest, but it was a contest run under unusual rules....Candidates were not allowed to campaign, and voters were told by the D.N.C. their votes wouldn't count. That kind of election doesn't comport with our usual democratic norms." Beyond that possibility, there are fairly compelling equitable arguments both for not seating the delegates and for holding some kind of revote, if it is technically feasible to do so. The argument for not seating the delegates is that the rules were set forth in advance and known by everyone -- Florida and Michigan gambled that their delegates would be counted and lost. On the other hand, such a decision would penalize the voters of Florida and Michigan, who did not make the decision about when to vote. That decision was made by party officials and the states. Even putting aside the negative political implications of not seating Florida and Michigan, voters in these states deserve some representation at the convention, if only to vote on the party platform and other decisions.

One complicating factor is the disincentive a revote will create next time around for states deciding whether or not to abide by DNC rules. Indeed, under current DNC rules, states that hold their primaries after May 1 get a 30% delegate bonus at the convention. And the contests would take on more importance than even the delegate count (which, given the Democrats' proportional rules, won't be enough for either Clinton or Obama to capture enough delegates to avoid the nomination being decided by superdelegates.) Politically, the winner of these two late contests will get extra momentum with two large, late primaries. It would be ironic, if not crazy, to give these benefits to those states that broke the rules.

2. The Election Administration Difficulties with a Revote. My main concern with a revote (apart from the disincentive of states to follow the rules next time) comes from the election administration difficulties of pulling it off. In an earlier post I noted the danger of doing a vote-by-mail election for the first time in Florida in such a high stakes election. A recent New York Times article shows that vote by mail can be done in a fair way (putting aside the possibility of the buying of absentee votes), but that it takes time to set up. There's simply no way to do it in time.

If you want an election in Florida the way to do it is with paper and pencil. A ballot containing the names of Clinton, Obama, and Gravel (if he's still running) would be marked with an "x" at state-run polling places with ballots counted by hand. Absentee ballots would be needed for those who can't get to the polls and for overseas voters.

Michigan is in a better position administratively to put on a primary or caucus, but there is still fighting over the details. I turn now to this point.

3. The Fairness Issues with Structuring a Revote, and the Danger of Litigation. The current legislative proposal (pdf) contains a controversial proposal: anyone who voted in the Republican primary in Michigan (which includes many Democrats and Independents) won't be able to vote again this time around. This raises a serious fairness concern, because voters who voted in the Republican primary did not know and could not have known that their vote there would then bar them, under state law, from voting in a months-later primary on the Democratic side. I expect that if this Michigan provision is enacted into law it could be challenged in court by Obama supporters -- who would have a chance of winning the argument that the Michigan law is unconstitutional. It is not clear how such a case would come out, but it would bury the Democrats deeper in the muck.

4. The Superiority of Political Compromise. For this reason, the best way out of this conundrum is a political compromise. One possibility is a 50-50 split of delegates, which provides some representation for both sides and for both states. Another possibility, which has been floated by Bill Nelson and others (hence the name half-Nelson), is to award Florida delegates based on the result of the earlier contests but with each delegate getting only half a vote. Clinton would get a 19 delegate bump, but would not get the chance to increase her delegate lead. That has something for each side to cheer -- though Clinton would likely prefer to roll the dice and try to get a big PR boost (if not delegate boost) from a later Florida contest. Settling Florida and Michigan would be good for the Democratic party, allowing it to move on with less uncertainty to the process of resolving the nomination issue and focus on the general election contest.

5. How to Get There From Here. Imagine a closed door meeting with the two candidates, Al Gore, Howard Dean, John Edwards and Bill Richardson. The four non-candidates get behind such a plan and tell each candidate to do so as well. If not the four hold a press conference and explain which candidate or candidate refused to compromise for the benefit of the Democratic party.

In short, resolution requires political leadership from the DNC and other nationally recognized Democratic leaders who have not committed to one side or the other. They have to use a different kind of half-Nelson.